SPECIFIC PERFORMANCE.

Stratford Evening Post, Volume XXXII, Issue 65, 12 March 1912, Page 5

SPECIFIC PERFORMANCE.

ROBJSON-SANSON CASE STILL PROCEEDING. THE END NOT IN SIGHT. In the Supreme Court at New Flymouth yesterday, (hearing was continued in the case in which M. C. Robison proceeded against J. Sanson for specific performance of an agreement to exchange farm lands. John C. Nicholson, solicitor, practising at New Plymouth, who drew up the draft clause of the deed of sale, said he first hoard of the grassing clause very shortly after the signing of the agreement, tho matter being mentioned the same day by Robison. Robison said to witness: m‘Bv Jove! I forgot to tel! you that there is a provision in Bayly’s mortgage requiring 400 acres to be laid down in grasr. per year.” Witness replied: “Does Sanson know about it?” The roplj was, “Yes; he knows all about it,” and Robison added that Sanson did not mind about it-, as he anticipated laying down a bigger area than' that each year on his own account. Witness advised his client that if Sansoi. knew of the condition, the omission of reference to it in the agreement wa; not fatal. At a subsequent discussion no reference was made:by Rbbi son to obtaining a concession of fix clause from Bayly. Some time later upon Sanson refusing to complete' tin agreement, witness informed . Robisoi that in the event of a civil action the ground of,defence would in his opinioi bo the non-iinclusion of the grassing clause in the deed. Witness' advisee his client that the fact that the matter had previously been mentioned tc Sanson would have to be proved orally, and if the defendant denied it there might be difficulty in proving it. Witness then advised him to see Baylj and get him to waive the clause. Mr Spence: .Why did you not immediately go back to Mr Fookes’ office and enter a memorandum ox agreement in regard to the omission of the grassing clause ? ■ Witness : Because I was . satisfied from my client that Sanson knewabout it and considered it of no importance.

To Mr Spence, witness subsequent ly admitted it was not the most prudent thing that could be adopted, bu: tho agreement was anciently. lega binding without the grassing covenant Mr Spence: Did you telEMr Fboke-f (Sanson’s solicitor) that Sanson kitev. all about the covenant ? ' ~-,

Witness replied that (he could no’ remember, and subsequently he-saic ho thought Mr Fookes’ memory wa; incorrect when lie alleged that inj answer to the grassing clause he (witness' had replied’ that it would be all right as lie would try fid tVrVange with Bayb to waive the clause.

Mr Spence: When I communicatee with- you by telephone on Novembei 3, -did-you allege or suggest that San son knew of the clause?

Witness : I don’t know. I don’t thin] I did. In that particular ■ conversation you were doing all the -’ talking and I was taking care to say vprj little.

Thomas C. Fookes, solicitor, who u; to a certain point acted for the defendant in tho deal, gave evidence snr rounding the signing of the agree raent.

To Mr Spence: Not a word wa: mentioned to him of the existence o the grassing covenant. To Mr Spence: Mr Nicholson mad< no reference, Mr Sanson’s knowledge, of the passing clause. Witness first knowledge of the clause was a result of a search- of the title.

To Mr Bell: Mr Sanson had ex pressed himself highly pleased wit-1 the island. Sanson gave him no ini pression whatever that he was hoin< hurried into the exchange, or that lu was 'being pressed into it against hi; will.

DEFENDANT’S EVIDENCE

The defendant (Henry Sanson, next stepped into the box, and sail he iiad worked at the trade of a saddler until he was 35 years of age. when he took up farming pursuits, ii which he has been engaged ever since. Detailing his financial position, he. said that his farm was heavily mortgaged and he owed his hank £3500, wihicl was the limit allowed him. Referring to the transaction under review, do fondant recalled that he had approached Hodge and asked him if he know ol any good lamb-fattening country foi sale. Subsequently Hodge called upon defendant, and greeted him with the remark, 1 ‘Hullo! I have sold your farm.” Defendant expressed surprise and then Hodge said that lie had not vet disposed of the property, hut he had particulars of a likely property ii; the shape of Matakana Island. Sucre qucntly Hodge called at the house, accompanied by F. Kemp, the latter giving witness a glowing description of the property, with the result that- ah three immediately left to inspect the island, Kemp also mentioned that tie and his brother had wished to buy the top part of the place, hut Robison would not sell. Kemp said that Robison was a poor farmer, and could not manage Matakana well. In the course of conversation witness (defendant) asked Kemp: “Is that the island which four years ago was offered in the (Auckland papers for 10s an acre?” Kemp replied in the affirmative, stating that they had paid 12s Gd for it, and added that anything that Robison said could ho taken as the truth. Describing Ins first- visit to the island, Sanson said the grassed portion appeared to look well. As regards the sheep, Robison had told him that there were about- 1000 ewes, with a few wethers among them. The raupo swamp was said to contain kauri gun. Witness was positive that no mention of ] the grassing clause was made in his hearing, or prior to Iks signing the agreement. Reverting to 'the gum lands, witness said that Robison told

I him that the Austrians were desirous of obtaining the gum-digging . rights j of the swamp, as it contained thousands of pounds worth of gum. Upon witness expressing a fear that the swamps were undrainable, Robison said that- Bayly had obtained levels which showed that there was ample fall for drainage purposes, and further stated that tho sandy land had been tested by Bayly and would grow anything. Sanson then recalled that on one occasion lie had told Hodge that lie did not like the island, as it would ■require too much money for .him to find to work it. It would lie necessary to find £SOOO or £6OOO. Hodge then offered to endeavour to raise this amount. lln fact he (Hodge) was prety well sure that Mr Curtis would provide £IO,OOO. Witness then went on to deny ever having had a conversation with A. Kemp, in which ho was supposed to have expressed satisfaction with the place and asked him to keep Griffin Bros, out of the way. Witness added that subsequent to tbo drawing-up of the agreement ho had remarked to Hodge that he was afraid he had “fallen in.” Hodge thou said, “If you -want to get or 1 ' of it there is an improvement clause cl 400 acres which is not included in the agreement.” At witness’ request, Hodge wrote down some instructions (produced) to search the mortgage for the grassing danse, and he (Sanson) ■would find out what he meant.

“DON’T LET THE KEMPS KNOW.” Witness added that Hodge fill on enjoined him as follows: “Don’t lot the Kemps know about this, or there will ■be a devil of a row. I believe they would kill mo.” After giving further evidence, defendant said that had he known of the grassing covenant he would never have agreed to purchase. On the occasion of his second visit to the island the number of sheep was corrected, Robison stating that instead of 1000 there were only 750 on the property. One of the reasons that influenced witness in his decision to buy was Robison’s statement that in throe or four years, with a. few improvements to the place, ho would be able to sell at probabb twice as much as he paid for it.

To Mr Bell: The land ho had been accustomed to was always heavy, and when he first saw Matakana he remarked: ‘This is the land I have been looking for for thirty years past.” He was pleased with the grass, but noi with the crops. It was useless tc buy tho property unless ho laid down the land so as to carry a large number of stock. Mr Bell than asked Sanson whai difference it could make if (he war laying down a big. area (say 1000 acres) each year if this clause, compelling him to sow 400 acres was included in tho agreement > ■" Defendant replied t..xt had he known it, he was, in signing the deed of purchase, virtually making himself responsible for £I2OO worth of improvements the first year, owing to his predecessor’s neglect.

Mr Boll: It is said that on the island yon stated that you did not regard the grassing clause as of any importance. ■; , >. , ; 1 Plaintiff: That is not so.

Mr Boll: Well, assuming you had made that statement would the clause have been of importance to you ? Plaintiff replied that in effect he did not suppose it would have mattered whether the clause was in the agreement or not.

Mr Bell: Yet yon toll u.s that this particular clause is one of your reasons for wanting to rescind.

Defendant was cross-examined at length by Mr Bell, and the Court rose at 5.5 p.m. The case will ho continued at 10 a.m. to-day. It is expected that the taking of evidence will he concluded to-day, hut counsel’s addresses—those of Mr Bell and Mr Skerrett—will he delivered before Mr Justice Sim at Wellington as -soon after the conclusion of the New Plymouth sessions ar possible.—“ News.”